Sunday, July 31, 2011

Cherry Point Clearing Questions Asked

Hi all,

Thought you might be interested in this letter (below) I sent to Whatcom County Planning and Development Services this morning trying to get answers for the many questions that have arisen from the clearing at Cherry Point. I'll let you know what I hear.


To: Sam Ryan, Director

Whatcom County Planning and Development Services


RE: Questions Regarding Clearing at Cherry Point

Hi Sam,

Ever since I alerted Tyler to the clearing at Cherry Point, and then made that information available to the public to ensure everyone was on the same page I have been barraged by valid questions from the public. I would like to get written answers to the following questions as soon as possible, and if PDS would like I would be glad to make time available in the Natural Resource Committee next week for an update on this situation.

From my brief walk through the area (you should have received the map and pictures which can be found at: it appears that SSA/PIT has pushed through somewhere in the area of 2.5 miles of roads clearing 4-5 acres. Any clarity you can provide about this clearing would be greatly appreciated.

When I spoke with Wayne Fitch he said that SSA/PIT had been given written approval for some work to install monitoring wells in 2008. Please provide a copy of that approval. It has been reported in the media that SSA believed they had approval for this recent clearing because of their previous 1997 Permit. Was the 2008 approval for monitoring wells part of the previous permit, and if so did the approval for monitoring wells include the area east of Gulf Road and between Lonseth and Henry Roads? My remembrance of the previous permit and settlement agreement was that there was only a small amount of wetlands that would be impacted – in the 5-6 acre range – so how could this larger clearing be part of that permit?

Wayne told me that this recent clearing did not meet the requirements of the 2008 approval. Is that still the opinion of the County?

Did SSA/PIT notify the County before the start of this recent clearing? When did the County first become aware of these recent land-clearing activities?

It seems to me that this level of disturbance would have required review under SEPA. Was there a threshold determination? If so, I would appreciate it if you would provide the relevant documentation. If you believe that no new SEPA review was required, please provide the SEPA documentation that addresses these impacts.

Have the County’s Development Standards (WCC 20.80.630) been met? If not, what compliance or enforcement actions will be taken? If you believe that these standards do not apply, please explain why not.

What are the limits on clearing for such monitoring well activities or "geoexploration?" For example, can SSA, legally clear cut all 1,100 acres they own out there under this term, or is there a limiting number? Where in our regulations is this clear, or where is that number recorded? Please show documentation if it is not part of the 2008 monitoring well approval I already requested.

The County's wetlands delineation files and SSA Marine's project documentation both clearly show the presence of wetlands in the areas where these swaths were cleared. Do you agree that monitoring well activities or other geoexploration is not an exempt activity under either the County’s Critical Area Ordinance (see WCC 16.16.225 – 235) or Land Clearing Requirements (WCC 20.80.737)? If relevant critical area and land clearing requirements have been violated, as appears to be the case, what steps will the County take to enforce its ordinances as required by the Whatcom County Code?

I am unclear as to whether SSA can still be doing work based on their previous 1997 permit, or whether since they have declared new intentions and the County has ruled that the previous permit no longer covers their new intentions work on that previous permit should no longer be taking place. What is the County’s opinion on this question?

If SSA’s recent activities are justified by the 1997 permit, will PDS ensure that all of the terms, obligations, and limitations of the 1997 permit are met, including (1) compliance with the contractual obligations set forth in the Settlement Agreement, and (2) limitations on the size and commodities that will be handled at the proposed terminal?

-For example, Paragraph 2.1 of the Settlement Agreement states that “PIT {Pacific International Terminals] will implement and comply with all of the provisions of the PIT Wetlands and Habitat Mitigation Plan set forth in Appendix A [of the Settlement Agreement].” Has this contractual obligation been met?

- Paragraph 2.8.a states that “PIT has committed to using best management practices and has submitted draft plans to avoid and/or minimize the environmental impacts of construction and build-out.” Did this geoexploration and accompanying road construction comply with “best management practices”?

If SSA/PIT has breached the Settlement Agreement by failing to meet its contractual obligations, what recourse does the County plan to seek for this breach?

From my limited understanding of DNR forest practices it appears that SSA should have filed a forest practice application with DNR. Is this correct? Was such an application filed? Has DNR been notified regarding this clearing? Under the County’s forest clearing regulations, isn’t a development moratorium now required, in light of the unauthorized clearing?

Are there other activities that SSA is still taking under the 1997 permit? If so, please provide a list of those activities and copies of any approvals, permits, disciplinary actions, or other written agreements that pertain to ongoing activities.

Has the Department of Ecology been made aware of this clearing activity, and if so has the County been informed of any concern they may have regarding water quality impacts to public waterways?

Since the following statement is in the Project Information Document on Page 5-68 (

"A Jurisdictional Determination by the US Army Corps of Engineers (USACE) issued on March 5, 2009, confirmed the extent and location of delineated wetlands on the Pacific International Terminals property. The USACE also determined that all aquatic features, including wetlands, streams, and ditches, on the Pacific International Terminals property are jurisdictional because they either abut or are adjacent to unnamed tributaries of the Strait of Georgia, a traditional navigable water. More details on existing wetland conditions can be found in the Wetland Determination and Delineation Report (AMEC 2008). . . .

Wetlands comprise approximately 530.6 acres, or approximately 49 percent, of the Pacific
International Terminals property."

Has the U.S. Army Corps of Engineers been made aware of this clearing activity, and if so has the County been informed whether the Corps has issued permits allowing the destruction of these wetlands for these purposes, and if no permits have been issued is the Corps investigating these issues? Who at the Corps would be responsible for such investigation?

I am sure you are well aware that a significant number of people in Washington State have concerns with the public process set up by the Governor to review SSA’s new proposal. There are also many people here in Whatcom County that question whether the County has the resources or will to use the County’s enforcement provisions to adequately deal with environmental violations. Clearly, the degree to which state agencies and the County handle this current clearing situation in a transparent, expedient, and adequate manner will either help rebuild trust in government or further erode it. I believe clear answers to the above questions will help this process rebuild trust.

Thanks for your help with this mess. I will be in DC Monday through Wednesday this week and hard to reach. Answers to these questions can be emailed to me. For documents that cannot be emailed, I will pick them up in the Council office on Thursday. If it would be easier to just post these questions, and the answers and documentation on the SSA website that PDS has set up that would also work just fine.

Thanks again,

Carl Weimer, Member

Whatcom County Council

District 3

cc: Pete Kremen , David McEachran , Roxanne Michael ,, "Ted Sturdevant", Grout, Richard (ECY) , "Jeannie Summerhays", Wenger, Barry (ECY) ,,,,, Barbara Brenner , Sam Crawford , Ken Mann , Kathy Kershner , Tony Larson , Bill Knutzen , Carl Weimer , Dana Brown-Davis

Thursday, July 28, 2011

Cherry Point - Full Disclosure

Hi all,

Once, or sometimes twice a week I walk my dogs at Cherry Point. It’s the best off leash dog park around and they love it.

As many of you probably know Cherry Point is a real conundrum for County Council members these days. While many are allowed to read about and attend meetings regarding the proposed SSA coal port, Councilm
embers have been advised by our attorneys to stay as blissfully ignorant of the entire proposal as possible. Since we may ultimate make the decision on whether that coal port goes in or not we are supposed to maintain our "appearance of fairness" by doing our best not to form an opinion about the proposal until the process plays itself out and all the information from all the different parties is given to us to make our decision. If we are seen attending anti-coal forums or having private lunches with Craig Cole from SSA, someone could challenge our impartiality and ultimately our right to be part of the decision.

Well now my dog walking adventures have put me between a rock and a hard place regarding this appearance of fairness. While wandering around Cherry Point a couple week ago we noticed that someone had started clearing parts of the wetlands on the SSA property at Cherry Point. I thought that was odd since the Council had just recently been told by our planning staff that to date SSA had not even submitted a complete application for their project, let alone been given permits to start clearing anything. So my dogs and I investigated a little and what we found was somewhere in the area of 2.5 to 3 miles of new roads have been cleared through the wetlands at Cherry Point in the exact location where the new rail loop would be placed to dump the coal. Here is a very basic map of where the clearing has occurred.

It would appear that based on the length and width of the new roads that about 4.5 acres of wetlands have been cleared to push these new roads into the wetlands (2.5 miles of road x 5280 feet x 15 foot wide roads / 43,560 square feet per acre). Here are some pictures of these new roads.

Last week I checked with the County's Planning and Development Services (PDS) since they are the ones that are permitting this project and should know about such activities on the site. They did not know about this clearing and road building, but said they would be in the area the following day and would stop by and take a look. When I checked back with PDS a couple days later they said that yes the clearing and road building had been done without proper permits, and that the company had been told to apply for a clearing permit after the fact and had been told to restore the site. PDS also said they had contacted the Department of Natural Resources in case some form of forest practice application should have been obtained. They were very surprised that SSA would have done this without the proper authorization. They said the roads had been put in to drill some monitoring wells. Here is a photo of one of those drilling sites at the end of one of these new roads.

They also said that SSA had asked for and was given written permission in 2008 to drill some monitoring wells, but that permission did not include permission to clear vegetation or do anything near this level of ground disturbance. That made sense to me because over the course of the last couple years my dogs and I had seen a number of monitoring wells go into the fields and along the edges of the forests at Cherry Point. Those monitoring wells disturbed very little, and are within this time frame, so I assume those were the wells that PDS gave SSA permission to drill. Here are some pictures of those earlier wells.

So what happens now because of the unpermitted clearing and road building? How much damage has this done to the wetlands that a good deal of the pending environmental review would be concerned with?

Those questions, and I suspect more, are for someone else to figure out. I don't really even know what part SSA played in this clearing. My purpose pointing this out to PDS was to make sure all the County rules were being followed. My purpose posting this information here, and submitting it to PDS and all my fellow councilmembers is to make sure we all have this information for whatever it is worth as part of our future decision making, and that I am not the only one that has this information. Full disclosure accomplished?

The coal port proposal will go through tons of analysis on a whole range of important issues, and the wetlands disturbed by this unpermitted clearing is only one issue. I do find it more than a little disturbing that a company that has been claiming they will build this huge project in an environmentally friendly manner that far exceeds how such facilities have been built anywhere else on earth made such a substantial permitting blunder when they know they are under a public microscope. Hopefully they can do better from here on out!

Here are a few more pictures from the clearing.



Update 7/31/11

Buddy (the County's chief compliance officer) was up way too early this morning wanting to get back to Cherry Point to continue his nosing around.

We got out there early enough to run into a couple of deer and a coyote, and saw some large flocks of goldfinches in the fields. We walked west on Henry Road from the closed gate at Gulf Road (this is still a public road even past the locked gate).

We found some additional clearing on the parcel just west of where the clearing above occurred. This clearing runs parallel to Henry Road from nearly Gulf Road to the top of the bank of the creek that divides this parcel. Below is a map.

This probably represents about another quarter acre of clearing. Here are some pictures of it.